Relocating to the other side of the world? Case note on Nemcova & McLeod – An international relocation matter

International relocation cases are notoriously difficult.

A Judge is faced with making the difficult decision to allow one parent to relocate with the children, or refuse the relocation. By allowing the relocation, the unavoidable consequence is that the children’s experience of their non-primary caregiving parent will be very different to what it would be if they were living close by.

In practical terms, it can be the difference between a child seeing their parent very regularly or only seeing them a few times each year, during school holidays or on other special occasions like Christmas.

The recent decision of Justice Jarrett of Nemcova & McLeod [2024] FedCFamC1F 752 is on point.

In this case, the Mother was born and raised in the United Kingdom, but was a permanent resident of Australia, having moved to Australia in 2015 on a working visa. The Mother was 34 years of age and while she had a background in a specific industry, was not working at the time. The maternal family remained in the United Kingdom.

The Father was Australian citizen living in Australia. The Father was 53 years of age. He worked on a seven-day on, seven-day off fly in, fly out roster, flying out either Tuesday or Wednesday and back home the following Wednesday. He lived in a rented home with his new partner.

The parties had commenced living together in 2017 in Brisbane and the Mother fell pregnant within three months. The children were born in 2018 and 2021. During the relationship, the Mother worked part-time, while the Father worked a roster of eight days on and six days off.

Throughout the relationship and prior to COVID-19 border restrictions, the Mother regularly travelled with the children to the United Kingdom to visit family. In late 2021, after travel restrictions were lifted, the Mother and the children went to the United Kingdom and the Father joined them shortly after. Whilst in the United Kingdom, a dispute arose between the Father and the Maternal Grandmother. The maternal family wanted the family to live permanently in the United Kingdom, whilst the Father was tied to his employment in Australia and did not wish to move.

The outcome of this disagreement at the time was that the parties (on their own accord and without lawyers) signed what they called a “Family Relocation Agreement” on 15 January 2022.  The agreement (amongst other things) outlined a number of steps the parties would take in order for them to relocate and be settled in the United Kingdom in time for the eldest child to start primary school in 2023. The parties also engaged in discussions via text message about possible homes they might live, in relation to moving to the United Kingdom. The parties’ relationship was in tact at this stage.

The parties separated whilst in the United Kingdom, but after signing the Family Relocation Agreement. The Father had returned to Australia before the Mother and children, who remained in the United Kingdom. The Father informed the Mother that he did not consent to the children remaining in the United Kingdom, and requested that she return to Australia with them. He threatened to commence proceedings pursuant to the Hague Convention if she did not comply with his request. The Mother and the children returned to Queensland.

Between returning to Queensland and the trial, the children regularly spent time with the Father, with that time being supervised initially, as a result of concerns about of violence and substance issues.

The Mother applied to the Court for Orders permitting her to relocate to the United Kingdom with the children, which the Father opposed. At the time of the trial the children were 6 and 3 years old.

On the Mother’s proposed Orders the children would spend time with the Father two or three times per year, and specifically, once in Australia and once or twice in the United Kingdom. The Father and the Independent Children’s Lawyer sought Orders for the children to remain in Australia, where they would live primarily with the Mother and spend three or four nights per fortnight with the Father.

In his Judgment, Justice Jarrett concluded:

• If he ordered the children to remain in Australia, they would benefit from the current strength of their relationships with the Father. He would be physically present in their lives both for significant events and also the mundanity of daily life. They would have stronger relationships with him and form longer-lasting memories, especially the youngest child who was only three. However, their primary carer, the Mother, would continue to have poor mental health and wellbeing. She would not have the same level of employment opportunity or family support. Whilst he considered that her parenting would still be adequate in those circumstances, the children would lose out on their opportunity to be parented by the Mother at her best.
• If he permitted the Mother to live with the children in the United Kingdom, they would benefit from the Mother’s enhanced wellbeing. She would have access to opportunities which improve her quality of life and have the benefit of family support. The children would benefit from their Mother at her best self. However, they would lose regular and frequent physical presence of their Father. Whilst their relationships with him would still be of positive significance, they would not have the same character as they presently do.
• Importantly, on any of the proposals before the Court, the children will spend the majority of their time with their Mother, and because they would be most frequently in her care, the benefit they would attain from her improved wellbeing and ability to draw on family support would outweigh the detriment to them from a change in the nature of their relationships with their Father.
• The best interests of the children would not be significantly adversely affected by living with the Mother in the United Kingdom. The children would continue to benefit from relationships with both parents and have a primary carer who was capable of tending to their physical, emotional and developmental needs without a negative impact on her mental health. His Honour had regard to case law which held that the Mother’s right to live wherever she chooses should only be limited so as to avoid adverse effects on the children’s best interests: (Adamson & Adamson)  [2014] FamCAFC 232; (2014) 51 Fam LR 626.

Whilst there is a body of case law developing which supports the notion that an unchallenged primary carer should be afforded the freedom to live where he or she chooses, there are many considerations in determining the outcome of an application for international relocation.

International relocation cases are built “brick by brick”, and the paramount consideration remains that the Court must be persuaded that such proposed relocations are overall in the children’s best interests.